Another alleged music pirate pinged under New Zealand's 'Skynet'

Tom Pullar-Strecker

The New Zealand Copyright Tribunal is under the gun for failing to look into a claim that a brain injury prevented a person accused of online piracy from understanding their rights.

The tribunal ordered the unnamed Vodafone customer to pay Recorded Music New Zealand NZ$738.96 ($670.50) in costs, damages and "deterrent" payments after their account was used to illegally share music, including Radioactive by Imagine Dragons.

A Vodafone New Zealand customer has been punished under the country's three-strikes Skynet copyright regime.

The account holder was the 18th person to be punished under the country's three-strikes "Skynet" copyright regime. It was designed to provide streamlined justice for record labels and movies studios seeking to tackle online piracy.

The regime is one of several being investigated by the Australian government as it tries to tackle online piracy at the urging of copyright holders and the film industry. The NZ tribunal has the power to award up to NZ$15,000 ($13,600) in compensation.

After the tribunal wrote to the NZ account holder explaining how they could defend the claim, it received a handwritten letter purportedly written on the behalf of the account holder by their brother.

The letter requested a phone call and said the account holder had medical evidence of a brain injury and needed "correspondence portrayed via a house meeting" as they could not read well.

However, the tribunal did not refer further to the claim in its judgment and decided the case "on the papers", saying neither party had requested a hearing and it did not consider it necessary to convene one.

In the letter, the account holder said they knew nothing about the piracy and had had travellers and six new flatmates, each of whom had their own computers, staying at the property.

Auckland Brain Injury Association manager Steve Jenkins said that although that was not a legal defence to the alleged offence, it was little disappointing the tribunal had not inquired further about the brain injury.

Jenkins said it was rare, but possible for brain injuries to leave people unable to read well but able to communicate well verbally.

"I met a gentleman the other day who had a medical brain injury who has an important job and is very articulate but who couldn't even read a label on a bottle," Jenkins said.

His experience was that people didn't tend to use brain injuries as an excuse, he said.

Recorded Music NZ general counsel Kristin Bowman said that for privacy reasons it couldn't know the identity of people it was bringing cases against or meet them before taking enforcement action. Warnings were instead sent to internet account holders by their internet providers.

She said the tribunal "could have followed through" the brain injury claim, but questioned why the account holder couldn't have asked one their six flatmates to read out its letter.

"That is ultimately for the tribunal to manage," she said.

Recorded Music NZ, which represents the major record labels, faced criticism last year when another of the copyright-accused punished by the tribunal claimed to have been a soldier serving in Afghanistan at the time of the offences.

The latest "three-strikes" piracy case is the first to be ruled on by the tribunal for 11 months.

Bowman said in December that the industry body had decided to take a break from bringing cases before the tribunal, citing the high cost and frustration over the "insufficient" penalties handed down to alleged offenders.

She said today that the industry body had decided to bring further cases because music piracy remained a problem and it didn't have other tools to deal with it. A Ministry of Justice spokesman said another seven cases were pending.

Recorded Music NZ had commissioned research to work out why people were still pirating music despite the growth in legal online music services, Bowman said.

Those services included free and "all you can eat" subscription services such as Spotify, Radio and Pandora.

Although it had only the preliminary results, it appeared there was an element of some people "not giving a damn", she said.